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This is the second post of a two-part set. Click to read Part I.

As I noted in a previous post, the pending case of United States v. DTE Energy, Inc. tacitly raises issues concerning the constitutionality of both Supplemental Environmental Projects (SEPs) and the citizen suit provisions of environmental laws. This second post considers another constitutional issue that may emerge in the DTE Energy litigation: whether SEP agreements – and citizen suits more generally – interfere with a “core executive function” of the president and executive branch and longstanding constitutional notions of separation of powers. To resolve that question soundly, one must look to the text of the Constitution itself, the Federalist Papers, and the relevant body of law that the lower federal courts have already developed.

Notably, neither the Constitution nor the Federalist Papers provide a clear indication of what constitutes a “core executive function” or the extent to which federal law enforcement activities may be delegated. Nonetheless, there are numerous historical precedents for delegations of law enforcement responsibilities to private parties – some of which go well back into English law – and none of these prosecutorial arrangements have been successfully challenged in the courts.

As far back as the 14th century, the English Water Pollution Act of 1388 allowed members of the public, along with governmental authorities, to bring lawsuits to address water pollution that would now be referred to as a public nuisance. In the 18th century, the English courts recognized so-called “common informer actions.” These permitted private parties that assist public officials in apprehending and convicting criminal law violators to receive a share of the money those violators were compelled to pay as punishment for their non-compliance.

While the U.S. Civil War was raging, and in its immediate aftermath, the work of prosecuting federal crimes was substantially done by private attorneys retained by the federal government. That arrangement lasted until the U.S. Department of Justice was created by statute in 1870.

Finally, the American colonies – and later the U.S. states – inherited a longstanding English common law action, the so-called qui tam action. This mechanism (similar in some respects to English common informer suits) authorizes private parties known as “relators” to initiate lawsuits against parties in violation of legal requirements. The government is empowered to take over the pursuit of those actions. Where the government ultimately collects monetary fines from the defendants, relators are entitled to a portion of the money. In fact, qui tam actions were codified by Congress most recently in the False Claims Act of 2006 – a statute that attests to the power of Congress to supplement executive branch enforcement with private prosecutorial activity. The legislative history of the Clean Air Act citizen suit provision makes clear that section of the act was patterned, in part, on the qui tam suit.

In creating citizen suit enforcement, Congress intended to have citizen actions supplement – not replace – federal and state environmental enforcement. As reflected in the legislative history of the Clean Air Act, Congress recognized that government enforcement alone might be inadequate to address environmental non-compliance and that a backstop arrangement was needed. Those goals and perceptions are entirely rational, well-based in empirical observations, and consistent with past practices and the Constitution.

A body of case law, developed in the lower federal courts, has endorsed this view. To cite only one of many examples, in Carolina Shellfish Growers v. Holly Ridge Association, the U.S. District Court for the Eastern District of North Carolina ruled that a delegation of enforcement authority to private citizens “does not offend the separation of powers, nor does it impermissibly undermine the authority of the Executive.”

The Holly Ridge Association case, and others like it, were rightly decided. SEPs are a sensible mechanism for encouraging settlements in environmental enforcement cases, and citizen suits are a valid check and balance on “sweetheart deals” and other potential abuses of executive authority. They supplement governmental authority without supplanting it. They are fully consistent with Congress’s intent, past unquestioned law enforcement arrangements, and the Constitution.

There are many sound reasons for the courts to uphold the constitutionality of citizen suits and SEPs. Nonetheless, the DTE Energy case suggests that the current Justice Department and its conservative allies are prepared to launch fresh legal attacks on those important and needed approaches to enforcing environmental laws. The outcome of the case carries enormous stakes for citizen plaintiffs, to say nothing of the health and well-being of millions of U.S. residents.